In South Africa, we work in an Opt Out regimen as per legislation and that means, in essence, that brands can contact the consumers with the strict proviso that the consumers are not listed on the Do Not Contact database. [www.nationaloptout.co.za]
The Do Not Contact (DNC) database is a service offered to the South African consumer by the Direct Marketing Association of SA and it is free to the consumer.
“There has been way too much hysteria from business and around both the Protection of Personal Information Bill (PPI) and the Consumer Protection Act (CPA),” says Affinity Data’s Murray Hewlett. “Everybody should remain calm; the intent is to promote responsible marketing, not destroy consumerism.”
“The bill is about REGULATING the industry not KILLING direct marketing. The government certainly doesn’t want some two million jobs in contact centres lost because of the Bill. The DMASA and its CEO, Brian Mduli, has spent years partnering with the Portfolio Committee on Justice and Constitutional Development about regulating the market, and protecting consumers from irresponsible direct marketers. A more responsible industry is in everyone’s interests,” he said.
Given the largely technical nature and complexity of information law, Parliament resolved to establish a Technical Sub-Committee to deal with the processing of the Bill. The Bill is currently in its fourth working draft and was tabled at the first meeting of the Technical Sub-Committee held on February 24, 2011.
The bill subscribes to eight Information Protection Principles that affected organisations must adhere to. (See story by lawyer Pria Chetty that unpacks these principles.)
The PPI Bill is not the only bill to affect the direct marketing industry. The Consumer Protection Act comes into play on April 1 this year. Its purpose is “to promote a fair, accessible and sustainable marketplace for consumer products and services … and to establish national norms and standards relating to consumer protection, to provide for improved standards of consumer information, to prohibit certain unfair marketing and business practices, to promote responsible consumer behaviour …”
Electronic communication expands the implications of the provisions related to direct marketing by including communication by telephone, fax, SMS, wireless computer access, email or any similar technology device.
The provisions in the Act affecting direct marketing came into effect during October 2010. Direct marketing is defined in the Act as “to approach a person either in person, by mail or by electronic communication (for example, using telephone, fax, SMS or email) for the direct or indirect purpose of promoting or offering to supply, in the ordinary course of business, any goods or services, or requesting the person to make a donation of any kind.”
Every person has the right to require a marketer to discontinue any approach or communication that is primarily for the purpose of direct marketing. This right is part of each South African’s constitutional right to privacy. This is done by asking during the communication, or within a reasonable time afterwards, that the marketer stop initiating communication.
The Act requires a person who authorises, directs or conducts any direct marketing to implement appropriate procedures to facilitate the receipt of a demand to the effect that direct marketing to a consumer be discontinued. Such a person must also not direct or permit any person associated with the direct marketing to direct or deliver any communication for the purpose of direct marketing to a consumer who has made such a demand or registered a relevant pre-emptive block. Consumers may not be charged a fee for making a demand or registering a pre-emptive block (DNC).
The Minister of Trade and Industry will issue regulations prescribing specific days, dates, public holidays or times of day which are “prohibited periods”. Once the regulations in terms of which these periods are set become effective, no direct marketing during the prohibited periods will be allowed if the direct marketing is:
– directed to a consumer at home, and
– for any promotional purpose except to the extent that the consumer has expressly or implicitly requested or agreed otherwise.
Warren Moss, writing on MarketingWeb, says the Electronic Communications and Transactions Act (ECT), applies to any form of communication by e-mail, SMS, MMS and other forms of electronic communications and is intended to provide protection to South Africans from unscrupulous marketers.
Moss says: “Consumers have every right to question ‘special offers’ being presented to them and request the actual costs, even if the marketer says the offer is free. Consumers also have the right to request that they be removed from digital marketing lists and request proof of opting in to such marketing.
“The intention of the marketer and the cost of the offer must also be disclosed in full and must be done so in a manner that the recipient of the call can fully understand,” he adds.
Hewlett – who also sits on the board of the DMASA – reiterates that the Acts are not being promulgated to hurt the industry, but to regulate it. “These are well-considered pieces of legislation,” he says. “They protect consumers against unscrupulous marketers and database ‘owners’ selling illegal databases that they’ve stolen from a company and copied on a flash drive.”
The DMASA has launched Centres for Excellence (//www.dmasa.org/dmasa/dma_cofe.php) that lists companies that have undergone a rigorous data audit requirements, as outlined in the PPI Bill.
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